Husband Disputes Property Interest Adjustment Orders

Cosio & Cosio [2022] FedCFamC1A 187 (16 November 2022)

The primary judge adjusted the parties’ interests in their property such that the husband retains 52.5 per cent and the wife receives 47.5 per cent of the net pool of assets.  The husband appeals from final property settlement orders.  The Court, in resolving this dispute, relied upon Federal Circuit and Family Court of Australia Act 2021 (Cth).

Facts

The husband is currently 53 years old and is a professional.  The wife is currently 52 years old and is a public servant.  The parties commenced their relationship in 1991, married in 1992, separated in 2017 and divorced in 2019.  Two now adult children were born to the relationship, the youngest of whom still lives with the husband in the former matrimonial home. 

The husband has re-partnered.  The primary judge heard the trial over two days in February 2022.  It was the husband’s position at trial that he should receive 86 per cent, and the wife 14 per cent, of the parties’ net assets and superannuation, whereas the wife sought a property division in the order of 55/45 in her favour.  The primary judge delivered her reasons for judgment on 2 August 2022 providing for an adjustment of the parties’ interests in their property such that the husband retains 52.5 per cent and the wife receives 47.5 per cent of the net pool of assets.

Practically, that adjustment provided an opportunity for the husband to retain the former matrimonial home, but pay the wife a cash sum of $824,369, or in default of that payment, for the matrimonial home to be sold to fund the payment to the wife.  A superannuation split of the husband’s superannuation to the wife was also ordered.  The wife resists the appeal. 

Issue

Whether or not it was just and equitable to adjust the parties’ interests in their property.

Applicable law

House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 - provides that parties are bound by the conduct of their case at trial.

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 - held that the primary judge was not required to “mention every fact or argument relied on by the losing party as relevant to an issue”.

Analysis

Her Honour did not treat the parties’ legal interests in property as irrelevant.  Her Honour expressly eschewed any “community property approach” (at [60]) and it is not apparent from either the reasons, or the determination that it was indeed just and equitable to make a property adjustment order, that any of the contended assumptions were made by the primary judge. Whilst it is true that necessarily the last contended assumption was the actual result of the determination by the primary judge, there is no warrant for construing it as an assumption.

Conclusion

The Application in an Appeal filed 24 October 2022 is dismissed.  The appeal is allowed.  The matter is remitted for rehearing before a judge other than the primary judge.  No later than: (a) 4:00pm on 23 November 2022 the appellant is to make file and serve any material or submission in support of his application that the respondent pay his costs; (b) 4:00pm on 30 November 2022 the respondent is to make file and serve any material and submissions in relation to the appellant’s application for costs; (c) 4:00pm on 7 December 2022 the appellant is to make file and serve any material strictly in reply to any material filed by the respondent under Order 4(b).  Upon the last filing of material in conformity with Order 4, the decision in relation to costs stands reserved.

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